How Bad Will Things Become? Part One: The Post-Kennedy Assault on Reproductive Rights

by Neil H. Buchanan

The last 24 hours have been truly astonishing.  A few days ago, I had dreamed up the title of this column, "How Bad Will Things Become?" because I intended to write about how extreme the new Supreme Court is likely to be, far beyond what most commentators have yet realized (or, if they have realized it, have been willing to articulate).  But then the Trump-Putin press conference happened, and I am truly at a loss.

Because legal commentary is the avocation for which I am actually qualified, I will go ahead and write some of what I had planned to write today.  But before I do, I can only say ... Holy freakin' hell!!  What is going on?  Donald Trump stood next to the man who helped him steal the 2016 presidential election and, as a former CIA Director put it, made a series of unhinged statements that exceeded the bar for high crimes and misdemeanors and were "nothing short of treasonous."

To be clear, the offenses in the Constitution that justify the president's impeachment, conviction, and removal from office are "treason, bribery, or other high crimes and misdemeanors."  That is an or, not an and, so it is not even necessary to wonder what constitutes high crimes and misdemeanors on this point.  Treason is an independently impeachable offense.  We will, of course, now argue about what constitutes treason, but given how promiscuously Republicans have thrown that word around in the past ten years or so, that could be a fun argument.  Except for two things.

First, this is not fun.  At various points during the Republican primaries, late-night comedians all had their "Oh crap, this isn't funny anymore" moments.  We are well past fun or funny.  Going into 2017, I had been deeply fearful of how bad things would become under Trump, but despite the chaos of his first year, I joined others in appreciating the saving grace of Trump's utter incompetence, which allowed things to feel scary while somehow also feeling safe.

This was something like a roller coaster ride that we could reasonably believe had recently been maintained and inspected.  The Trump Ride has been jarring but (except for the many direct victims of Trump's cruelty and vindictiveness) still felt plausibly non-life-threatening.  Now, we know not only that nothing is being maintained or inspected, but we can clearly see that it is being actively sabotaged.  Even the privilege that non-poor white people unthinkingly rely upon will not be enough to save us from the possible consequences.  And if the mid-terms are also stolen, we will be in a completely different universe.

Second, we are not even going to have an argument about treason.  After the post-Charlottesville "very fine people" Trump meltdown, there were a few days during which we actually had reason to wonder whether Republicans had reached their limit.  They had not, and nothing since then has even brought them to say more than, "This is bad, but ... ."  The same day as the Helsinki insanity, the usual small group of Republicans said variously disapproving things, but none -- including Senators who chair committees with oversight responsibilities and who have the ability to push back on appointments and other matters -- has even hinted at consequences for Trump.  We keep asking, "How can Trump say that?" and the answer is always, "Because he knows he'll get away with it."

And of course the major reason that Republicans will say nothing is that they do not want to rock the boat as they lock in their era of minority rule.  Why worry about a big dollop of treason when you can get yet another extreme right-wing justice on the Supreme Court?  I cannot help but also point out that Neil Gorsuch and Brett Kavanaugh are far to the right of what I had thought most Republicans -- even very conservative Republicans -- viewed as acceptably conservative, but that merely means that they were better at hiding their genuine extremism than I had thought they were.

Because the first part of this column was hijacked by Trump's prostration before Putin and Republicans' prostration before Trump, I will limit myself here to only one issue in addressing the question "How Bad Will Things Become?" on the constitutional front.  Again, when a President is selling out the country in order to salve his own bruised ego regarding the illegitimacy of his election, constitutional law might seem like a rather abstract concern.  I could articulate the argument that constitutional law is anything but abstract, but I will set that aside here because the argument does seem rather obvious.

So here is the substantive issue: What will a full-on hyper-conservative Supreme Court do in the area of reproductive rights?  CNN commentator Jeffrey Toobin spent a bunch of time after Justice Kennedy's retirement announcement saying that "Roe is gone, forget about it!" and he was right.  Most commentary that I have read, however, limits itself to saying that the end of Roe would return the question to the states.  Yes, states in the Deep South and a few others will end all access to abortion, this line of reasoning goes, but blue states will still allow it.

But why?  The Republicans have been hiding behind procedural arguments for years, especially states' rights and separation of powers, to pretend that they do not have an aggressive substantive agenda, but that is obviously a pose.  As Professor Dorf pointed out on this blog almost a full decade ago (December 2008), for example, the conservative backlash in the 1970's against gay rights was a reaction against the enlightened decisions of local representative governments.  All of the posturing since then about federalism and "let the people decide, not the courts" was utter bull.

Similarly, some conservatives' attacks on the Affordable Care Act tried to frame it as federal overreach, partly as a way to allow 2012 Republican presidential nominee Mitt Romney to pretend that his law in Massachusetts had not violated some of the very principles that conservatives were invoking against President Obama's law.  (To be clear, the ACA was actually much better than Romney's law, precisely in the ways in which it was not conservative, but that is a story for another day.)

Now, the Republicans have no further reason to hide behind procedural objections.  They oppose reproductive freedom for women, full stop.  The idea that they will restrain themselves to merely "letting the states decide" is beyond naive.

Back when the first big case challenging the ACA reached the Court, some writers pointed out that it would have gone down by an 8-1 vote, if the justices had all voted consistently with their stated views in earlier cases.  But of course four votes instead materialized for the proposition that the Commerce Clause included an action/inaction distinction, with the Chief Justice's surprise move regarding the taxing power being the only thing that saved the law from invalidation.

Why, then, would movement conservatives be satisfied with a federalist response to reproductive rights?  And to be clear, I am not only talking about abortion here, because Republicans have been more than happy to attack access to birth control and other women's health services, which is what motivated the Hobby Lobby decision.

How bad will things become?  There is nothing stopping a newly configured Supreme Court from defining life as beginning at conception.  Indeed, given over half a century of conservative attacks on the right to privacy (with pseudo-insightful comments about how the word privacy itself never appears in the Constitution), why would the new Court not simply overrule Griswold, too?  After all, even Congress might one day flip to Democrats (unless the Court's anti-voter jurisprudence prevents it), so why would the Court's conservatives allow mere elected representatives to provide the people with reproductive freedom?

Will there be resistance?  Of course there will.  As Professor Dorf recently pointed out in a broader context, there is a little bit of substance -- but only a little bit -- to the hope that state courts will protect us from a new hyper-conservative Supreme Court.  And perhaps Chief Justice Roberts's vaunted concern about the institutional legitimacy of the Court will cause him to prevent an outright sprint backward to the Nineteenth Century, but I am not counting on it.

Some readers might be thinking, "Well, the Court's conservatives might want to do X, but how would they do it?"  After all, many Dorf on Law readers are lawyers and law professors, and we are trained to think through the legal reasoning by which a Court would overrule precedent and accelerate a reactionary revolution in jurisprudence.

But that gets it exactly backward.  I am not quite as much of a Legal Realist as, say, frequent Dorf on Law contributor Eric Segall, but Segall has certainly been right about the current Court's unprincipled jurisprudence, including his observation from this past January that if the Court's conservatives "were to take their prior rules regarding precedent (and federalism interests) seriously, they would not" rule against the unions in the Janus case, even though he (and everyone else) knew that the five conservatives would do exactly that.

A completely unconstrained Court can decide to overrule some cases, pretend not to overrule others, and grossly mischaracterize still others; but it can get to where it wants to go.  Given how closely the Court's conservatives appear to coordinate with their political colleagues in the movement, they might actually decide not to formally overrule Roe as a way to keep their base angry (in a move similar to how they have eviscerated the estate and gift tax -- $22.4 million exemptions per couple! -- without actually repealing it, thus preserving a potent fundraising issue).

But anyone who thinks that abortion is the only reproductive right that is in danger, or that there will still be states in which those rights are still available, misunderstands just how brazen and arrogant the Court's conservative wing has become.

Things will become very bad, indeed.  And that is even assuming that Trump does not simply hand power directly over to Putin in the meantime.